Property Rights : when unmarried couples separate

When married couples separate, most of the issues between them are resolved by family lawyers pursuant to family laws, such as the Matrimonial Causes Act 1973. Family laws, however, do not apply when unmarried couples separate.

One of the biggest issues for the separating unmarried couple is their interest in and right to occupy the home they had previously enjoyed as a couple.

Whether court proceedings are to be issued or not, the law relating to this issue is the Trusts of Land and Appointment of Trustees Act 1996 known often as TOLATA. This gives the Court certain powers to resolve disputes as to the ownership and residence.

A person claiming an interest in a property can apply to the court under the above Act for a number of reasons, such as : –

• To seek an order for sale;
• To determine the parties’ interest in the property and proceeds of sale; and
• To reoccupy a former home when an ex-partner refuses to leave.

Court proceedings should be considered as a last resort; not only can the costs be extensive, but proceedings can be stressful, time-consuming and take a number of months to conclude.

All parties involved in a civil dispute are under a duty at all times to mitigate costs and consider alternative ways to settle a dispute, whether this is by correspondence between solicitors, mediation or a round-table meeting. Every case is different, however, each party should be open to resolving matters in a way that is proportionate to the facts of the dispute.

A party who is considered by the Judge to have acted unreasonably in declining to seek settlement of their case may be penalised with costs.

It is for this reason that specialists in Dispute Resolution are instructed to deal with such disputes, which are governed by the Civil Procedure Rules, rather than the Family Procedure Rules.

Here at Pepperells, we have a team of experts within our Dispute Resolution Department who can provide you with expert advice and representation, to give you the very best chance of realising your interest in the property.